In Cummings v. Premier Rehab Keller, the Supreme Court will decide whether Congress meant to create a private right of action to sue for compensatory damages for emotional distress under existing federal civil rights laws.

While this case has flown largely under the radar, it will have colossal implications for the ongoing legal battle to protect religious freedom, especially as it intersects with modern interpretations of civil rights law and governmental anti-discrimination provisions.  

Jane Cummings, who is deaf and legally blind, had attempted to make a physical therapy appointment at Premier Rehab in Keller, Texas, for her chronic back pain. Premier Rehab is a small business and a top rehabilitation clinic that is also a recipient of federal funds.

Due to her disability, Cummings requested that Premier provide her with a sign language interpreter. Premier declined, instead offering to refer Cummings to a different clinic or provide alternative accommodations.  

The alternative accommodations it offered Cummings—to communicate with her through written notes, lip reading, and gesturing—were, she believed, insufficient to meet her needs. Cummings first asked Premier Rehab for an interpreter in October 2016, returning a few days later and again in February 2017. Each time Premier denied her one. 

Eventually, Cummings chose another provider that offered the accommodations she sought but received treatment she believed to be “unsatisfactory.” In August 2018, Cummings sued Premier Rehab.  

Five years and several appeals later, the Supreme Court is now set to hear oral arguments in her case on Nov. 30. 

Cummings’ lawsuit against Premier Rehab alleges that its refusal to provide an interpreter caused her “humiliation, frustration, and emotional distress.” 

Even though abundant remedies for emotional distress exist under state law, she claims that Premier Rehab’s conduct violated federal anti-discrimination statutes, specifically, the Rehabilitation Act of 1973 and Section 1557 of the Patient Protection and Affordable Care Act of 2010, which prohibit recipients of federal funding from discriminating against disabled individuals. 

Under current law, compensatory damages are available to plaintiffs under Title VI of the Civil Rights Act and the statutes that incorporate its remedies.

For example, a plaintiff may recover “compensatory damages” under the Rehabilitation Act of 1973 (29 U.S.C. § 794a(a)(2)) and the Affordable Care Act of 2010 (42 U.S.C. § 18116(a)). But the Supreme Court has never articulated whether such compensatory damages include damages for emotional distress.

Advancing a theory of emotional distress damages under federal civil rights law may sound appealing, but the impact of such an outcome could be devastating to small businesses that form the backbone of the American economy. 

Federal anti-discrimination laws function like a contract: Businesses that receive federal funding agree to comply with them, accepting that they may be held liable if they violate them. 

Courts have allowed individual victims to sue businesses that violate these laws when the laws themselves are sufficiently clear so as to put businesses on notice of this possibility. As 10 states argue in an amicus brief supporting respondent Premier Rehab, it’s highly doubtful that Congress intended to include damages for dignitary harms like emotional distress as a remedy for violation of civil rights laws.

The Supreme Court established the availability of compensatory damages for victims of discrimination in 2002 in Barnes v. Gorman. The purpose of compensatory damages is to compensate victims for their losses or injuries. They differ from punitive damages, intended solely to punish the violating party for discriminatory behavior. 

Cummings does not claim she endured physical injuries, incurred financial harm, or suffered any other tangible loss as a result of Premier Rehab’s denying her an interpreter. Rather, she is suing solely on the basis of emotional distress. 

Courts can and have recognized emotional distress as the sole, legitimate justification for bringing suit, occasionally even determining that emotional distress damages are recoverable as an award of compensatory damages. But, the Supreme Court has yet to determine whether they can be recovered as an award of compensatory damages after a violation of civil rights law.

For example, emotional distress damages are available as a remedy in employment discrimination law and tort law against individuals and entities that engage in intentional misconduct that causes emotional distress or that engage in negligent conduct that leads to it. Damages for emotional distress are often awarded when it is accompanied by objectively harmful conduct that violates individuals’ rights. 

In the Barnes v. Gorman case, for example, a jury awarded compensatory and punitive damages to a disabled person who suffered injury after being transported in a police van that was not equipped to transport someone with his disability. The Supreme Court ruled he could not be awarded punitive damages but left the compensatory damages untouched. But, as the lawyers for Premier Rehab point out, the plaintiff in that case suffered actual physical harm, not just emotional distress. 

But Cummings’ case is different. Businesses and individuals can choose what they say and do, but not how they make others feel. Holding them liable solely for someone’s hurt feelings could lead to a torrent of frivolous claims for alleged violations of federal anti-discrimination law, making it harder for those suffering from real discrimination to obtain the compensation they deserve and bring violators to justice. 

The ramifications of the Supreme Court’s decision in Cummings v. Premier Rehab Keller will likely extend far beyond disability law. Emotional distress is almost entirely subjective and could be used as a pretext to sue people and businesses under anti-discrimination law where the only alleged discriminatory conduct involved is honoring one’s religious beliefs. 

If Premier Rehab is forced to pay emotional distress damages to Cummings, what of the medical practitioners who refuse to perform mastectomies on transgender patients or bakeries that decline to make custom cakes for same-sex couples?  

By way of example, Evan Minton, who identifies as transgender, sued a Catholic hospital after it cancelled a scheduled hysterectomy. Although that lawsuit alleged that the hospital violated a California state anti-discrimination statute, there is no reason why Minton could not have filed an action in federal court for alleged violations of federal anti-discrimination laws if damages for emotional distress are compensable under those laws. 

One could easily imagine other similar cases that could conceivably bankrupt countless small businesses and individuals who oppose the Biden administration’s continuous redefinitions of gender, marriage, and life. 

As the courts continue to recognize sexual orientation and gender identity as protected classes under federal civil rights law, allowing people to sue violators for causing them vaguely defined and often unverifiable emotional distress would open a Pandora’s box of harmful effects on religious freedom. 

Granting Cummings compensatory damages under federal civil rights law for her emotional distress would set an irresponsible legal precedent with untold, unknowable, and uncontrollable consequences.

In expanding emotional distress damages under anti-discrimination law, the justices must also wrestle with separation of powers questions. Every state has its own laws and tort remedies that allow victims of discrimination like Cummings to recover damages for intentional infliction of emotional distress. But Cummings asks federal courts to expand an implied right of action under federal civil rights law and apply it to every state, including allowing plaintiffs to recover potentially uncapped emotional distress damages.

This result would render all state laws that place a cap on damages that can be awarded for emotional distress effectively null and void.

Unless and until Congress explicitly authorizes damages for emotional distress under federal anti-discrimination statutes such as the Rehabilitation Act, the Supreme Court should not invent a right to sue under those statutes to recover solely for emotional distress.

In other words, the court should not invent a right that currently doesn’t exist, nor should it hold businesses responsible for damages they cannot predict, quantify, or foresee. 

Only time will tell if Cummings v. Premier Rehab Keller will become one of 2021’s defining civil rights cases. But for now, the justices should refrain from creating a remedy that isn’t needed, was not intended by Congress, and would likely make things worse. 

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